MEMORANDUM OF WRIT PETITION (CIVIL) FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA.

The address for service of notice to the Petitioner is that of his counsel, John T Paul, Advocates, High Court of Kerala, Ernakulam.

The address for service of notice to the respondents are as shown above, or their counsel, if any, engaged.

STATEMENT OF FACTS

1. The petitioners are aggrieved by the denial of pension on discharge at own request on compassionate grounds from BSF under Rule-19 after completing the minimum qualifying service for pension. The first petitioner Association is a registered society constituted for the welfare and rehabilitation of ex-servicemen, widows/dependants of the Armed Forces under the Ministry of Home Affairs and the other petitioners are the individuals discharged from the Border Security Force (BSF).

2. The Border Security Force is an Armed Force of the Union as other Armed Forces like army, Navy and Air Force. The Armed Forces are formed by Central Acts being in the entry 2 of List-I of Seventh schedule of the Constitution. The Forces of Army, Navy and Air Force are placed under the Control of Ministry of Defence and the other Armed Forces of the Union are placed under the control of the Ministry of Home Affairs. Due to the special conditions of the nature of employment, the members of these forces are permitted retire/discharge at his own request before completing the prescribed term of engagement under the relevant rules with pension, if otherwise eligible. The true copy the approval order issued to the 2nd petitioner dated 4.11.96 is produced herewith and marked as Exhibit P-1. All the other petitioners are also issued with similar orders. Also, on such discharge they are issued with the Discharge Certificates. The true copy a discharge certificate issued to the 2nd petitioner dated 31.1.97 is produced herewith and marked as Exhibit P-2. All the other petitioners are also issued with similar certificates.

3. As per BSF rule 186, the pension is regulated by CCS pension rules. This discharge under BSF Rule-19 does not entail forfeiture of past services as in Rule-26 of CCS pension rules being the BSF Rule as a special Rule. Accordingly the petitioners were discharged under Rule-19 with pensionary benefits, if otherwise admissible. The true copy of the extract of the relevant BSF Rule-19 is produced herewith and marked as Exhibit P-3.

4. The eligibility of pension on discharge under BSF Rule-19 was also agreed by the Govt by O.M No.24/1/95-pers/BSF dated 27.12.95. The true copy of the OM dated 27.12.95 is produced herewith and marked as Exhibit P-4.

5. However, on a misinterpretation of the BSF Rule-19, the pension was not released to the personnel resigned under rule-19 during 1995-98. The true copy of the letter No.Estt/BHQ/55Bn/Pen/98 dated 10.6.1998 issued to the 3rd petitioner is produced herewith and marked as Exhibit P-5. The issued was decided by the Hon’ble Supreme Court in Union of India v. Rakesh Kumar - 2001(4) SCC 309 and the later decisions of the apex court blindly followed the precedent without looking in to the change in qualifying service to earn pension from 1.1.1986 based on the 4th pay commission recommendations. The 4th pay commission reduced the minimum qualifying service to earn pension from 20 years to 10 years with effect from 1.1.1986.

6. It is submitted that later, after 3 years the department directed the retired individuals to rejoin duty with a condition that by refunding all the money they received on retirement. Some of them who managed the money and remained medically fit could rejoin and the others those who spent the money on house building and for other resettlement issues could not rejoin. Those who remained medically unfit also were left out. Recently this Hon’ble Court had directed the department to re-induct the petitioner if medically fit. The true copy of the order of this Hon’ble Court dated 3.4.2013 in W.P (C)-25099/2006 is produced herewith and marked as Exhibit P-6.

7. The government accepted this fact and paid pension to 86009567 Ex Lance Naik P A Nazar on 18 July 2008, who is similarly situated individual resigned under rule-19 after completion of 10 years. The O.P No.30745/1999 filed by P.A Nazar was allowed by this Hon’ble Court and reached finality on dismissal of the SLP by the Hon’ble Supreme Court. The respondents did not file any review and complied with judgment by issuing pension. The true copy of the pension order No.Estt/SHQ-ASR/Pension-P A Nazar/2008/10823-30 dated 18.7.2008 issued to P A Nazar is produced herewith and marked as Exhibit P-7. The true copy of the judgment of this Hon’ble Court dated 21.6.2000 in O.P-30745/1999 is produced herewith and marked as Exhibit P-8.

8. It is submitted that the petitioners came to know from reliable sources that there are many individuals other that P A Nazar, who were granted pensionary benefits under rule-19 after 2001. Also the family pension is granted to 12 widows of the retirees under BSF rule-19. However the petitioners could not obtain any documentary evidence to substantiate the issue other than the case of P A Nazar.

9. Aggrieved by the nonpayment of pension, the 1st petitioner had sent many representations since 2008. But nothing has been considered by department and mechanically rejected by citing the judgment in Union of India v. Rakesh Kumar - 2001(4) SCC 309. The issue was raised before the Hon’ble Apex Court for clarification and the Hon’ble apex Court had directed to approach the Govt. The order of the Hon’ble Supreme Court in A.N No.11/2006 in WP(C) No.(a) 569/2011 dated 17.11.2006 is produced herewith and marked as Exhibit P-9. The respondents never considered the representations under the correct rules. There are 697 personnel without pension and could not rejoin. All the penurious conditions were elaborately explained before the respondents. The true copy representation dated 13.3.2013 by the 1st petitioner is produced herewith and marked as Exhibit P-10.

Under the above circumstances, the petitioner has no other efficacious alternative remedy than to approach this Honourable Court under Article 226 of the Constitution of India on the following among other:-

GROUNDS

A. The 4th Pay Commission had reduced the minimum qualifying service to earn pension from 20 years to 10 years with effect from 1.1.1986. Hence those who retired after 1.1.1986 under Rule-19 with minimum qualifying service of 10 years or more will be eligible for pro rata pension subjected to the other conditions of proportionate reduction as per rules. This has been upheld the Hon’ble Apex Court inUnion of India and Others v. Dr. Vijayapurapu Subbayamma : 2000 (7) SCC 662 : AIR 2000 SC 3113 : 2000 KHC 1702 It is held that:-

……..8. Applying the aforesaid principles what we find in the present case is that the respondent retired on 13-11-1980 and under the then relevant rules, an employee who has put in less than twenty years of qualifying service was not eligible to earn pension. At that point of time the respondent had put in only twelve years of qualifying service and, therefore, was not entitled to earn the pension on her retirement. The recommendations of the Fourth Pay Commission were enforced with effect from 1-1-1986 whereby the requirement of qualifying service to earn pension was reduced to ten years from twenty years. By the said recommendations a new class of pensioner was created. But the said recommendations of the Pay Commission were not enforced with effect from 13-11-1980 - the date when the respondent retired but with effect from 1-1-1986. Thus, the recommendations of the Fourth Pay Commission not being with retrospective effect, the respondent was not entitled to receive pension under the said recommendations which came into effect from 1-1-1986……..

The decision in Union of India v. Rakesh Kumar - 2001(4) SCC 309 is applicable only to the extent where the employees resigned under Rule-19 during the period where the qualifying service for minimum pension was 20 years. It is held that:-

………15. On the basis of R.49, it has been contended that qualifying service for getting pension would be ten years. In our view, this submission is without any basis. Qualifying service is defined under R.3(q) to mean service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these Rules. R.13 provides that qualifying service by the Government servant commences from the date from which he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. This Rule nowhere provides that qualifying service for getting pension is 10 years. On the contrary, there is specific provision that if a Government servant retires before completing qualifying service of 10 years because of his attaining the age of compulsory retirement, he would not get pension but would get the amount of service gratuity calculated at the rate of half months' emoluments for every completed six monthly period of qualifying service..…….

B. The difference between CCS Pension Rule-26 and BSF Rule 19 is that in CCS rule the resignation entails forfeiture of past service. But in BSF the past service will be counted for pensionary benefits. The Armed Forces (Army, Navy, Air Force, BSF, NSG) members can seek discharge before completion of the term of engagement, at own request without forfeiting the past service. They can also seek voluntary retirement after 20 years corresponding with CCS rule 48. The BSF Rule-19 is special rule like rule-22 of The National Security Guard Rules, 1987 where the rule-22 (1) (ii) is extracted as below :-

…..(ii) in case the officer is eligible for pensionary benefits under the pension rules, order such reduction in the pension or other pensionary benefits of the officer as the Government may consider to be just and proper in the circumstances.

The eligibility for getting pension under BSF rule-19 is agreed by the government in exhibit P-4 G.O and it is decided by the Hon’ble Suprme Court in Rakesh Kumar (supra) where it is held that:-

…19..…The G.O read with rule 19 of the BSF Rules would only mean that in case of resignation and its acceptance by the competent authorities, the member of the BSF would be entitled to get pensionary benefits if he is otherwise eligible for getting the same under the CCS (Pension) rules and to that extent R.26 which provides for forfeiture of service on resignation would not be applicable…….

Hence, the 4th Pay Commission had reduced the minimum qualifying service for pension from 20 years to 10 years with effect from 1.1.1986, the petitioners those who are having more than 10 years of qualifying service to their credit, are eligible for pension as they retired after 1.1.1986. Also they are entitled count their qualifying service for all retirement benefits.

C. After pronouncing the judgment in Rakesh Kumar (supra) in 2001,the pension is already granted to P.A Nazar vide exhibit-P-5 in 2008. The respondents did not file any review and they have complied with the orders and it governs the field now. The petitioners are similarly situated persons. The discrimination among the equals and class legislation is violation of the Article-14 and 16. And held by the Hon’ble Apex Court in D.S Nakara and others v. Union of India 1983 (1) SCC 305 : AIR 1983 SC 130. Also there are many other individuals who were granted pension after 2001 and about 12 widows were granted family pension.

D. Blindly following the decision in Rakesh Kumar (supra) is not proper. That case is applicable only to the cases of individual who retired when the minimum qualifying service to earn pension was 20 years. That case builds up on a pre-conceived notion that the minimum qualifying service to earn pension is 20 years. (para-15 in the judgment). When the period was reduced from 20 years to 10 years, then the eligibility has also required to be revived. But this issue has not been considered. From 1.1.1986 onwards those who retired after 10 years qualifying service is eligible for pension. Blindly following that decision in every case is not proper. This has been held by the Hon’ble Supreme Court in the matter of following precedents in a catena of decisions including State Financial Corporation v. Jagadamba oil Mills - 2002 (3) SCC 496 also.

E. The petitioners are surviving in penurious conditions. They could not rejoin due to the conditions imposed for refund. The money was spent during the 3 years for resettlement and for survival as there was no pension. They have served for the nation. They got 10 years or more qualifying service to their credit. They have not done any mistake. Even in postal service they get pension after 10 years qualifying service. The resignation is only a form of discharge available only to some of the armed forces. Even an employee who is compulsorily retired by a punishment is also eligible for pension after 10 years. In this case the petitioners are discharged with honour to pension establishment. It was specifically written on their discharge certificates. The payment of pension is a recurring cause of action. The first petitioner was actively representing before the respondents. But the respondents blindly followed the precedent.The pension is not a bounty granted in the sweet will of the employer. It is not granted on the whims and fancies of the employer.

For these and other grounds to be urged at the time of hearing, it is humbly prayed that this Hon’ble Court may be pleased to:-

i) Declare that the petitioners resigned under BSF Rule-19 after serving 10 years of qualifying service with effect from 1.1.1986 are entitled for pensionary benefits.

ii) Declare that the petitioners are entitled for pension as the same is granted to P.A Nazar and others.

iii) Call for the records related to the issue of pension under BSF rule-19 to the persons with less than 20 years qualifying service after the judgment in Rakesh Kumar in 2001.

iii) Issue a writ of mandamus or any direction or order to the respondents, to consider and pass appropriate orders on exhibit-P-10 representation in the light of reduction in minimum qualifying service to 10 years w.e.f 1.1.1986 by 4th pay commission.

vi) Award interest on arrears, cost and such other and further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case.

INTERIM RELIEF PRAYED FOR:-

For the reasons stated above, it is respectfully prayed that this Hon’ble Court may be pleased to direct the respondents to consider and pass appropriate orders on exhibit-P-10 representation in the light of reduction in minimum qualifying service to 10 years w.e.f 1.1.1986, pending final disposal of this Writ Petition (Civil).

1. I am representing the petitioner association in the above Writ Petition and I am duly empowered and competent to do so. I am swearing this affidavit on behalf of the other petitioners also. I know the facts of the case.

2. The statement of facts and grounds urged in the Writ Petition are true­ and correct.

3. The exhibits produced in the Writ Petition are the true copies of the original documents.

4. I have not filed any other writ petition seeking similar reliefs in respect of the subject matter of this writ petition.

All the above stated facts are true to the best of my knowledge, information and belief.

Dated this the ……. day of January 2014.

DEPONENT

Solemnly affirmed and signed by the Deponent before me this the …….. day of January 2014 in my office at Ernakulum.

Advocate.

BEFORE THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM

W.P(Civil) No. 2655 of 2014

AICPMF Ex-Servicemen Welfare Association & Others : Petitioners

Vs

Union of India & Others. : Respondents

SYNOPSIS

The petitioners are aggrieved by the denial of pension on discharge at own request on compassionate grounds from BSF under Rule-19 after completing the minimum qualifying service for pension. The petitioners were discharged under BSF Rule-19. The 4th pay commission had reduced the minimum qualifying service for pension from 20 years to 10 years with effect from 1.1.1986. This change was not considered and the respondents are blindly following the 20 years period across the board. Similarly placed individual Ex L/Nk P.A Nazar is already granted with pension in 2008. The same benefit is not extended to the petitioners. The petitioners are similarly situated persons. The Petitioners are aggrieved by the above discrimination. Hence this writ petition

Dated this the ……. day of January 2014.

JOHN T PAUL

Advocate.

BEFORE THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM

W.P (Civil) No. 2655 of 2014

AICPMF Ex-Servicemen Welfare Association & Others : Petitioners

Vs

Union of India & Others. : Respondents

I N D E X

Sl. No. Contents Page Nos.

Synopsis. : A

Writ Petition. : 1 to

Affidavit. :

Exhibit P1:- True copy of the relevant portion

of the BSF Act and CRPF Act

Exhibit P2:- Ex-Servicemen (re-employment in

CSS and Posts) Rules 1979

Exhibit P3:- True copy of the

:

Exhibit P4:- True copy copies of the

:

the crops cultivated. :

Dated this the ……. day of January 2014.

JOHN T PAUL

Counsel for the Petitioner.

Presented on: .1.2014

Sub: Service – Denial of service pension

BEFORE THE HONOURABLE HIGH COURT OF KERALA ERNAKULUM

(Special Original Jurisdiction)

W.P (Civil) No. 2655 of 2014

AICPMF Ex-Servicemen Welfare Association & Others : Petitioners

Vs

Union of India & Others. : Respondents

MEMORANDUM OF WRIT PETITION (CIVIL) FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA.

JOHN T PAUL

ADVOCATE,

HIGH COURT OF KERALA

ERNAKULAM.

Appendix

Exhibits of the Petitioner

Exhibit P1:- True copy of the…………….

Exhibit P2:- True copies of

Exhibit P3:- True copy of the

Exhibit P4:- True copy copies

Exhibit P5:- True copy of the

Exhibit P6:- True copy of the

Exhibit P7:- True copy of the

Exhibit P8:- True copy of the

Exhibit P9:- True copy of the

Exhibit P10:- True copy of the

Writ Petition Filed

BEFORE THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM

(Special Original Jurisdiction)

W.P.(C) No. 29773 of 2013

PETITIONER:-

All India Central Paramilitary Forces

Ex-Servicemen Welfare Association,

Represented by its General Secretary,

P S Nair, S/40, Sankar Nagar, Chinnakada,

Kollam, Kerala – 691 001

Vs.

RESPONDENTS:-

Union of India,

Represented by the Secretary, Ministry of Home Affairs,

North Block, New Delhi – 110 001

Director (Personnel),

Ministry of Home Affairs, Police Division-II

North Block, New Delhi – 110 001

The Secretary, Ministry of Defence,

North Block, New Delhi – 110 001

The Director General of Resettlement,

West Block -4, R.K Puram,

Resettlement and Welfare Directorate,

New Delhi – 110 066

Department of Personnel and Training

Represented by the Secretary,

Ministry of Personnel, Public Grievances and Pensions,

North Block, New Delhi – 110 001

Director General- Border Security Force,

10, CGO Complex, Lodhi Road,

New Delhi – 110 003

Director General- Indo-Tibetan Border Police,

2, CGO Complex, Lodhi Road,

New Delhi – 110 003

Director General- Sashastra Seema Bal,

Force Head Quarters, Block-V, R K Puram,

New Delhi – 110 066.

Director General- Central Reserve Police Force,

1CGO Complex, Lodhi Road, New Delhi – 110 003

Director General- Central Industrial Security Force,

13, CGO Complex, Lodhi Road, New Delhi – 110 003

State of Kerala,

Represented by the Chief Secretary,

Government Secretariat,

Thiruvananthapuram, PIN – 695 001.

The Chairman,

Kerala Public Service Commission,

Pattom, Thiruvanathapuram-695 004

MEMORANDUM OF WRIT PETITION (CIVIL) FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA.

The address for service of notice to the Petitioner is that of his counsel, John T Paul, Advocates, High Court of Kerala, Ernakulam.

The address for service of notice to the respondents are as shown above, or their counsel, if any, engaged.

STATEMENT OF FACTS

1. The petitioners are Ex-Armed Forces personnel aggrieved by the denial of equal benefits extended to the other Armed Forces of the Union like Army, Navy and Air Force. The petitioner Association is registered society constituted for the welfare and rehabilitation of ex-servicemen, widows/dependants and serving personnel of the Armed Forces of the Union of India under Ministry of Home Affairs viz, Border Security Force (BSF), Sashastra Seema Bal (SSB), Indo Tibetan Border Police (ITBP), Central Reserve Police Force (CRPF) and Central Industrial Security Force (CISF).

2. All the above Armed Forces are constituted after the Independence by the Central Acts as Armed Forces of the Union for ensuring the security of the borders of India and for matters connected therewith. True copy of the relevant portion of the BSF Act and CRPF Act is produced herewith and marked as Exhibit P-1. The Armed Forces are formed by Central Acts being in the entry 2 of List-I of Seventh schedule of the Constitution. The Forces of Army, Navy and Air Force are placed under the Control of Ministry of Defence and the other Armed Forces of the Union are placed under the control of the Ministry of Home Affairs.

3. All the Armed Forces of the Union are constituted for performing the duties of safeguarding the nation externally as well as internally. A minimum period of 20 years of compulsory service is common to all Armed Forces. The personnel of the Armed Force were compelled to discontinue their jobs prematurely due to various professional hazards caused by extreme weather conditions and the requirement to maintain highest physical standards of the Armed Forces. On discharge/retirement from the Armed Forces, the personnel were granted certain resettlement benefits by the Central and State Governments in recognition of their dedicated service to the nation. Even though the members of the petitioner association remained as an Armed Force of the Union, they were not granted the benefits at par with the other Armed Forces of the Union like Army, Navy and Air Force. This was due to the reason that when the rules were made for re employment of Ex-Servicemen, the Armed Forces other than Army, Navy and Air Force were excluded from the definition. True copy of the Ex-Servicemen (re-employment in CSS and Posts) Rules 1979 is produced herewith and marked as Exhibit P-2. Due to this discrimination the benefits extended to the armed Forces of the Union were denied to the petitioners.

4. However, the Central Government after realizing the hardships, in 1979, directed the State governments to extend the benefits at par with Ex-servicemen. True copy of the letter No.9/54/74 Estt/EP-77 dated 24-6-1976 to the Chief Secretaries of the States is produced herewith and marked as Exhibit P-3. Again another letter was issued in 1983. True copy of the letter No.W.V-1/82-Adm.II(SEL)-FP.IV dated 30.6.1983 to the Chief Secretaries of the States is produced herewith and marked as Exhibit P-4. Further, in 1985 another communication was issued. True copy of the letter No.I 45024/V/85-Adm/ITBP/FP-II dated 2.7.1985 to the Chief Secretaries of the States is produced herewith and marked as Exhibit P-5. Recently, the Central Government has issued another Office Memorandum to the states to Grant suitable benefits on the lines of the benefits to the Ex-

Servicemen. True copy of the Office Memorandum no.27011/100/2012-R&W dated 23 Nov 2012 to the Chief Secretaries of the States is produced herewith and marked as Exhibit P6.

5. In spite of all these letters and directions since 1976, neither the Central Govt nor the State Governments had extended the benefits. Even the Central Govt did not honour its own decisions. Only the State of Goa and Union Territories of Daman &Diu, Dadra & Nagar Haveli had extended the benefits. True copy of the Gazette Notification No. 1/49/95-PER dated 30.05.2013 issued by the Government of Goa is produced herewith and marked as Exhibit P-7. True copy of the Notification issued by the Administration of Daman & Diu U/T notification No. COI/DMN/EST/-MAG/Forces-17/2013-14/160 dated 05.06.2013 is produced herewith and marked as Exhibit P-8. True copy of the Notification issued by the Dadra and Nagar Haveli Administration vide Notification No. DNH/DS (H)/Ex-CAPF/14/2013/196 dated 10.07.2013 is produced herewith and marked as Exhibit P-9.

6. For availing the ex-servicemen benefits, the Central Government had clarified and declared that the Forces under the Ministry of Home Affairs are Armed Forces of the Union. The clarification issued by Central Govt by F.No.24021/74/2004-P.C dated 6.8.2004 is produced herewith and marked as Exhibit P-10. It was accepted by the Central Govt that they are the first line of Defence in any security operation or disaster management. The Central Govt had also suggested designating the status as ‘Ex-Armed Forces Personnel, and ‘Martyrs/Shaheed’ status to those who have made the supreme sacrifice. True copy of the letter issued by the Min of Home Affairs No.27011/100/2007-RW dated 17.7.2009 is produced herewith and marked as Exhibit P-11. The Home Secretary of the Govt of India also wrote to the Chief Secretary of the State of Kerala to extend the benefits of ex-servicemen to the petitioners. True copy of the letter issued by the Home Secretary, Government of India No. 27011/100/2012/R&W dated 29.6.2013 is produced herewith and marked as Exhibit P-12.

7. Aggrieved by the non implementation of the status at par with the Ex-Servicemen, the petitioners had a meeting with the Hon. Home Minister on 9.8.2010. Then also they were given many assurances but no substantial problems were resolved. True copy of the reply to the delegation before the Home Minister No.27011/12/2010- R&W dated 7.9.2010 is produced herewith and marked as Exhibit P-13. The Hon. Home Minister also declared that the petitioners will be granted ex-servicemen status. The true copy of the headlines appeared on the Malayala Manorama Daily on 23.10.2013 is produced as Exhibit P-14.The petitioner also preferred representation before the Central Government and State Government. True copy of the representation before the State Government dated 09.1.2013 is produced herewith and marked as Exhibit P-15. True copy of the representation before the central Government dated 27.8.2013 is produced herewith and marked as Exhibit P-16. However the respondents did not consider the representations and still the status at par with Ex-Servicemen had not been extended to the petitioner members.

Under the above circumstances, the petitioner has no other efficacious alternative remedy than to approach this Honourable Court under Article 226 of the Constitution of India on the following among other:-

GROUNDS

A. The non consideration of the exhibit P-3 to P-6 O.Ms of Central Govt by the respondents and denial of the benefits to the petitioners at par with other ex-servicemen are illegal, arbitrary, discriminatory and violation of Article 14 and 16 of the Constitution which is liable to be interfered with by this Hon’ble Court. The Exhibit –P 6 O.M of the Central Govt clearly directs to extend benefits to the Ex-CAPF personnel as ‘Based on such designation, the State Govt/UT concerned may extend suitable benefits to them on the lines of the benefits extended to the Ex-Servicemen of Defence Forces’.

B. The Union list-I entry 2 of the 7th schedule of the Constitution as follows:–

‘2.Naval, military and air forces; any other armed forces of the Union’

which clearly classifies that all the Armed Forces of the Union will fall in a single homogeneous group. The nature and role of duties of Forces under MHA and Min of Def are similar. The Armed Forces deployed in the Borders like BSF and ITBP etc are remain in the borders only. All have to serve at least 20 years compulsory and no resignation is permitted. All the Forces are having separate Force for trying the offences. The Indian Coast Guard, which is another Armed Force under Min of Defense is granted with CSD Canteen Facilities, Free Medical Facilities at Military Hospitals etc. Hence the discrimination towards the other Armed Forces under Min of Home by excluding them from the benefits granted to the members of the Army, Navy and Air Force is violation of the fundamental rights of equality guaranteed under the Constitution.

C. The restriction of fundamental rights to form association, freedom of speech under article-19 is imposed by the Sec-13 of the BSF Act. This is attracting the applicability of Article-33 (a) of the Constitution which treats these forces as Armed Forces. The words ‘Armed Forces of the Union’ in the section 197(2) 0f CrPC includes CRPF, as held in Akhilesh Prasad V Union Territory of Mizoram AIR 1981 SC 806. Hence by enactments and by legal declarations it is settled these forces are Armed Forces of the Union. Hence all are belonging to a homogeneous group, then the benefits extended will also applicable in uniform.

D. The reservation in employment and other benefits are granted to the ex-servicemen for the reason that they retire in the middle of their career. The Armed Forces are required to keep highest physical standards to fight with the enemy and to sustain themselves in the extreme climatic conditions. Their duties are always performed in abnormal conditions coupled with the threat to life either by enemy or by climate. The long exposure to such disciplined rigorous conditions of service, high risk posts in high altitude, solitary confinement in the Glaciers and deprival of domestic life will deteriorate the physical and mental abilities of a human being in the young age itself. This will make them unfit to bear the brunt of further service which compel most of them to finish in halfway. Also to keep the youngness of the Armed Forces a major portion of them quit or made to quit the Forces in the middle. To resettle these valiant fighters, the concept of employment assistance by reservation and other benefits are granted. It is the harsh conditions of the service that enable them for reservation and not the name of the wing which they fight. Hence, exclusion of the Armed Forces under Ministry of Home Affairs in job reservation is discriminatory, arbitrary and illegal.

E. Whoever served in the Armed Forces will generally be termed as Ex Servicemen in the normal parlance. The term ex-serviceman is not defined in any statutes. The available interpretation is based on the Ex-Servicemen (re-employment in CSS and Posts) Rules 1979 section-2. But this is applicable only to those who claim benefits under that rules. (UoI v All Kerala ex GREF and Family welfare Association 1998 KHC 423:1998 (2) KLT 613) Adopting this discriminate interpretation for ex-servicemen by KPSC will definitely cause injustice to the petitioners and they will be deprived of their legitimate rights available for re-employment. As per Central Rule 10% of the vacancy in Group B, C and 20% in Group-D posts are reserved for ex-servicemen. However the KPSC had excluded the petitioners by adopting the CCS (Ex servicemen) Rules and even diluted the percentage of reservation by substituting it with weightage marks. To avail weightage, the ex-servicemen have to firstly get selected in the short list and then they will get weightage as per the length of service i.e 1 mark for every completed two years of service. After 20 years of service, an ex-serviceman, weather beaten, pensioner in his forties, appear in a competitive examination along with fresh young candidates. Then he has to compete with them with his faded memories to find a place in the short list. Mostly they fail in this competition among the unequal and the reservation norms are flouted. The definition of Ex servicemen by excluding some Armed Forces divisions and not following the reservation in employment by the KPSC is highly arbitrary and discriminatory.

F. In common, the benefits are denied to the petitioners for stating the reason that they retire at the age of 57yrs and they are governed by CCS Pension rules. In the Army, Navy and Air Force also they superannuate at 57yrs. The application of the CCS Pension rules is due to the reason that there is no other rule to regulate the pension. But the issue of CCS Pension Rules comes into play after the retirement. This has nothing to do with the service rendered prior to retirement. Army personnel posted in Kargil or Leh gets Military Service Pay for the reason that he is in Army, but a BSF Jawan in the same sub-zero temperature is deprived of the same when the 6th Pay Commission has granted Military Service Pay to the Armed Forces which is considered as ‘pay’ for the purpose of pension calculation.

F. The members of the General Reserve Engineering Force (GREF) under Min of surface Transport had been extended with the benefits of Ex- servicemen. This issue was considered by this Hon’ble court in UoI v All Kerala ex GREF and Family welfare Association 1998 KHC 423:1998 (2) KLT 613 where it was held that Ex-GREF personnel are Armed Forces Personnel. The GREF is regulated by CCS rules.

H. The exhibit P-6 Office Memorandum was issued by the Min of Home Affairs to grant the benefits at par with the ex-servicemen to the Armed Forces under the Ministry. But, when the status was conferred, the term ‘Ex-Armed Force Personnel’ which was initially recommended, was changed to ‘Ex-Central Armed Police Force personnel’. This contorted status by insertion of the word ‘Police’ was only to deprive the benefits of the petitioners. The ‘Police’ is a subject matter of entry -2 in state list and ‘Armed Forces’ is the corresponding entry in the Union List in the 7th schedule. Also the Central Acts of BSF, ITBP, CISF, CRPF and SSB declared that these forces are the Armed Forces of the Union and nowhere related with any matter of ‘Police’. The word ‘Police’ was deliberately inserted in the status designation for producing a primary impression of something which is not a military or Armed Force. The duty of the Police and Armed Forces are entirely different. None of the powers of the Police is granted to the Armed Forces. The only relation with police is that these Armed Forces are headed by the short term deputation officers from the Indian Police Service. Such an unwarranted inclusion which is against the constitutional provisions and Central Acts had caused irreparable injuries to the petitioners.

I. The EX-CAPF personnel residing in the State of Goa and Union Territories of Daman and Diu, Dadra & Nagar Haveli are enjoying the benefits of the Government of India decision and their counterparts in Kerala is discriminated due to the delay in amending the rules to include the Ex-CAPF personnel in the definition of Ex-Serviceman. By issuing Exhibit P-6, the Central Govt had extended all the benefits of Ex-Servicemen to the Ex-CAPF personnel also. Now it is mandatory for the State Government to amend its rules to include the Ex-CAPF personnel for at par status with EX-Serviceman. The status of ‘Ex’ is being granted by the Union Government and the State Government cannot discriminate for the reason that of place of residence. The delay in amending the rules is clearly discriminatory and violation of Article 14 and 16 of the Constitution of India.

J. The delay in implementing the Central Govt decision of equal status will cause irreparable loss to the petitioners as they will be crossing the upper age limit for employment. The representations submitted by the petitioners are pending before the respondents. Without taking decision on the subject the KPSC is proceeding with existing recruitment rules to keep the Armed Forces away from the employment and it is against the policy of the Central Govt.

For these and other grounds to be urged at the time of hearing, it is humbly prayed that this Hon’ble Court may be pleased to:-

i) Declare that All the Armed Force of the Union are entitled for equal benefits.

ii) Issue a writ of mandamus or any direction or order to the respondents, to include the Ex-Armed Forces Personnel under the Ministry of Home Affairs in the definition of Ex-Servicemen or alternatively grant similar benefits at par with Ex-Servicemen.

iii) Issue a writ of mandamus or any other appropriate writ, direction or order, directing 1st respondent to delete the word ‘police' from Exhibit P-6 Office Memorandum.

iii) Issue a writ of mandamus or any other appropriate writ, direction or order, directing 12th respondent, KPSC to stop the weightage system and follow the percentage of reservation to ex-servicemen as permitted by law.

v) Issue such other and further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case.

INTERIM RELIEF PRAYED FOR:-

For the reasons stated above, it is respectfully prayed that this Hon’ble Court may be pleased to direct respondents to provisionally include the Ex-CAPF personnel in the ex-servicemen category, pending final disposal of this Writ Petition (Civil).

1. I am representing the petitioner association in the above Writ Petition and I am duly empowered and competent to do so. I know the facts of the case.

2. The statement of facts and grounds urged in the Writ Petition are true­ and correct.

3. The exhibits produced in the Writ Petition are the true copies of the original documents.

4. I have not filed any other writ petition seeking similar reliefs in respect of the subject matter of this writ petition.

All the above stated facts are true to the best of my knowledge, information and belief.

Dated this the 2nd day of December 2013.

DEPONENT

Solemnly affirmed and signed by the Deponent before me this the …….. day of December 2013 in my office at Ernakulum.

Advocate.

BEFORE THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM

W.P(Civil) No. of 2013

AICPMF Ex-Servicemen Welfare Association : PETITIONER

Vs

Union of India & Others. : RESPONDENTS

SYNOPSIS

The petitioner Association is registered society constituted for the welfare and rehabilitation of ex-servicemen, widows/dependants and serving personnel of the armed forces of Union of India under Ministry of Home Affairs viz, BSF, SSB, ITBP, CRPF and CISF. All the Armed Forces of the Union are performing same duties – safeguarding the nation externally as well as internally. The personnel of the Armed Force were compelled to discontinue their jobs prematurely due to various professional hazards caused by extreme weather conditions and the requirement to maintain highest physical standards of the Armed Forces. On discharge/retirement from the Armed Forces, the personnel were granted certain benefits by the Central and State Governments in recognition of their dedicated service to the nation. Even though the members of the petitioner association remained as an Armed Force of the Union, they were not granted the benefits at par with the other Armed Forces of the Union like Army, Navy and Air Force. This was due to the reason that when the rules were made for re employment of Ex-Servicemen, the Armed Forces other than Army, Navy and Air Force were excluded from the definition. The Central Govt clarified the position and directed the state Govt extend the benefits at par with ex-servicemen. However nothing has been done except in the state of Goa. Hence this Writ Petition.